5 Colo. Code Regs. § 1002-82.19
The provisions of 25-8-202 (1)(i.5) and 25-8-205 C.R.S. provide the specific statutory authority for these regulatory amendments. The Commission also adopted, in compliance with 24-4-103(4), C.R.S., the following statement of basis and purpose.
Basis and Purpose
The changes to the regulations are the result of a one-year workgroup effort designed to improve the Best Management Practices (BMPs) that are required in 401 certifications by the Division. The changes also provide for a more streamlined public notice process, and improved opportunities for public comment on Division certification determinations.
The Commission adopted a new approach to the utilization of Best Management Practices (BMPs) in 401 certifications. The changes provide for a more proactive process in the selection of BMPs. Applicants for 401 certification, other than Federal Section 402 NPDES permits, are required to select BMPs, and commit to the operation, maintenance and replacement of these water quality protective measures. In the past BMPs were attached as conditions to 401 certifications.
The definition of "BMPs" found in section 82.2 was changed to reflect the requirement for long term operation of BMPs, and also to reflect that BMPs combine structural and non-structural features. The definition of "Project", found in section 82.2 was changed to make it more consistent with the language found in Section 401 of the Federal Act, and to eliminate some confusing language about spatial and temporal features of projects. The application process found in subsections 82.4 was expanded to include a requirement for applicants to select BMPs appropriate for their project and to provide a site plan, description, and location of those BMPs. Subsection 82.4 , which previously required information on "mitigation measures", was deleted from the regulation since it was found to be duplicative with other requirements in the regulation.
Subsection 82.6 , Certification Requirements, has been expanded to include a new subsection (11) that requires that projects incorporate provisions for the operation, maintenance, and replacement of BMPs to ensure compliance with certification. Subsection 82.6 has been added to the regulation, and sets forth the requirements for BMPs. New language was added to the regulation in subsection 82.5 to clarify the authority of the Division to require monitoring in 401 Certifications.
The Division is required to certify that the construction and operation of the activity under review will comply with applicable State water quality requirements. In the case of "conditional certification", the Division has determined that such compliance will be achieved only if one or more conditions are imposed. However, in certain situations, the efficacy of the conditions can be determined only after their implementation. Hence, during construction and, in what is anticipated to be a small number of situations, during operation, instream water quality measurements must be periodically taken in order to ensure that water quality standards are being met. Water quality monitoring may include chemical, physical, and biological parameters, depending upon the water quality standard(s) of concern. To the extent such a monitoring condition is imposed, it is intended to be cost effective, directed towards specific parameters of concern, and significantly curtailed or terminated if no persistent problem is found to exist.
The "applicable requirements" referenced in section 82.5 are the same as those identified in section 82.5 , each of which relates to the maintenance of water quality standards and/or the protection of designated uses. The certification conditions will therefore, of necessity, be directed towards meeting these objectives.
Relative to paragraph 82.6(A)(10), the Commission acknowledges that to complete work diligently and as soon as practicable, it may be required that such work be performed during other than periods when impacts are minimal. Hence, discretion will have to be exercised in determining what is practicable under all of the site-specific factors surrounding the project in question. These factors will include project design, economic feasibility, and project scheduling as related to the need for timely project completion. However, it is the intention of the Commission that the project proponent, in establishing the design and schedule for the project, should undertake advance planning so as to, to the extent feasible, accommodate the designated uses and avoid any adverse impacts thereto.
Subsection 82.6 requires the preparation of an operations and maintenance plan. However, the permittee shall be accorded flexibility relative to the exact content of such a plan so long as the provisions thereof demonstrate compliance with the certification conditions. A certification requirement has been added in subsection 82.6 specifying that all seed, mulching material and straw used in projects shall be state-certified weed-free. This requirement will help minimize invasive species introduction that may adversely affect natural hydrologic conditions, e.g. increasing erosion and may help minimize the need for use of pesticides.
Appendix I was added to the regulation by the Commission to provide a basis for the public to understand BMPs and their importance in 401 certifications, and protecting water quality. Appendix I provides a listing of BMPs applicable to activities which seek 401 certifications in Colorado. The appendix provides a description of the types of practices, a matrix of activities and applicable BMPs, and a users guide in understanding the selection of appropriate BMPs for given activities.
The "Public Notice" and "Certification Determination" sections of the regulations, found in section 82.5 , were changed to provide more opportunity for public review of certification determinations, and improved timeframes for certification determinations. The public notice requirements were changed to require the Division to prepare both a draft and final certification for each 401 certification action. The preliminary antidegradation analysis, which was previously a separate step in the process, is now a portion of the draft certification, and the final antidegradation determination will be included in the final certification. The public notice period for the new draft certification procedure is 30 days. The Division is providing more frequent notice of 401 certification decisions, to assure timely certification decisions.
The language contained in subsections 82.5 (2), (3), and (4), which establish the process for decisions on certification requests, was both clarified and simplified. The reference to the requirements of section 25-8-104 of the Colorado Water Quality Control Act was retained, and a new subsection 82.5 (1) (h) was added to clarify the use of this information in Division determinations.
Much of the regulation has been reordered and renumbered, and in some cases minor changes in wording have been made to either clarify or strengthen certain provisions. Many of the BMPs found in the previous regulation have been relocated in section 82.6 "Certification Requirements". These requirements are good housekeeping features that apply to all 401 certification activities.
PARTIES TO THE RULEMAKING
5 CCR 1002-82.19